It just wouldn’t be an anti-transparency party without an encore appearance of the Michigan Municipal League (MML) and the Michigan Townships Association (MTA).
Don’t you find it odd that the MML claims that its “purpose is to improve municipal government and its administration through cooperative effort,” yet they are all in on the idea that local government should be able to hide records from taxpaying constituents? The MTA says its purpose is to “provide education and exchange information and guidance among township officials to enhance the efficient and knowledgeable administration of township government services in Michigan.” I guess it is more “efficient” to keep secret records in off-site files and hide them from taxpayers – that way, you don’t have to deal with pesky FOIA requests.
Ah, but now they’ve added the Michigan Association of Municipal Attorneys (MAMA). You might think that this is a whole new group coming out to support the city council. It’s not – MAMA is “a charter entity of the MML.” Full disclosure – I’m a member of MAMA, and MAMA obviously doesn’t represent my position in this lawsuit (duh). They also don’t represent the viewpoint of ANY municipal attorney that I know in this matter, because none of my friends and colleagues think that it’s OK to conceal a public official’s records in an off-site file. So, take MAMA’s new participation in my lawsuit with a truckload of salt. They’re all pretty much singing from the same hymnal as the city council anyway – but that should surprise no one, considering that the insurer (the Michigan Municipal League Liability and Property Pool, or MMLLPP) is part of the MML, just as MAMA is. Since the inclusion of MAMA is just puffery, it’s more accurate to refer to this amicus as the MML/MTA brief.
The MML/MTA brief essentially repeats the city council’s arguments in a different way:
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- The decision was reached “behind the closed chambers’ doors” and no one had input – yet they don’t explain why no one even asked to provide input until AFTER the case was decided
- They insult the media amici for taking only two pages to write what they claim is a “complex argument” (maybe three pages would have worked better for them?)
- They say that the case has broad-reaching and disruptive application, but they provided zero examples of that (even though they claim to collectively represent hundreds of public bodies including thousands of officials)
- They suggest that the Court shouldn’t have considered an argument in an amicus brief (so why did they waste their time filing what are now three amicus briefs in my case?)
- The Charter-appointed city attorney (the “city attorney”) is a private attorney and no one ever thought that he was a public body (oops – they must have read right over the part where everyone agrees with them, including me – the Court said that as an officer, the city attorney occupies the office of city attorney, but as an individual, he is not a public body)
- Clarkston is never going to give me the records because they won’t be able to get them from the city attorney who will insubordinately refuse to provide them
- The Court should have only looked at the definition of public body that the MML, MTA, and city council wanted them to look at – the Justices are not allowed to look anywhere else in the FOIA statute (because they say so?)
- Six of the Justices simply don’t understand statutory interpretation, so the MML and MTA needs to help them with that (but the lone dissenting Justice is totally correct)
- The Justices were so confused about what they were doing that they should throw the case out, and if they refuse, then they absolutely must give everyone a chance to argue some more (even though no one bothered to ask to weigh in before the decision was issued).
- The MML/MTA amicus is posted below.
20200828 – Answer in Support of Clarkston’s Motion for Rehearing by Amici Curiae
Our response:
The MML and MTA claim that the holding in my case reaches beyond the facts of the case. Um, of course it does. That’s the reason why we have the Michigan Supreme Court. The Court’s website states that “[t]he Court grants leave to those cases of greatest complexity AND PUBLIC IMPORT, where additional briefing and oral argument are essential to reaching a just outcome.” Every law student understands this. And every law student is also taught that when the highest court has the opportunity to choose between a broad or a narrow interpretation of a statute, they will almost always choose the narrow one. And that’s what happened here. That said, the decision will only impact public bodies who want their officials to be able to hide public records in off-site files. I certainly hope there aren’t very many of them, but the case will stand as a caution to public bodies who might be thinking about concealing records the way Clarkston has.
The MML and MTA are disingenuous when they suggest that hundreds of public bodies and thousands of public officials are extremely upset by the holding in my case. Justice Markman, writing for the majority, stated that the decision in my case was consistent with the words and intent of the FOIA statute and said it was not going to turn the world upside-down. He was correct. When something happens that is truly earth-shattering, people talk about it. (Remember the immediate reaction to the United States Supreme Court’s decision regarding the Affordable Care Act? That’s what happens when a court’s decision is significant.) In my case, there was very limited post-decision discussion, written mostly by the media – because like me, the media agrees that public officials shouldn’t be hiding public records in off-site files.
We filed a motion for leave to respond to the MML’s and MTA’s amicus brief.
Hey, do you see how that works? If you want to answer arguments in an amicus brief, all you need to do is file a motion, pay a fee, and include your brief. Easy peasy lemon squeezy. The attorney being paid by the MMLLPP to represent the city council (the “insurance attorney”) could have done the exact same thing between January 31st (when the media amicus brief was filed) and July 24th (when the Michigan Supreme Court issued its opinion). He didn’t do anything. Maybe the city council should ask him why that is.
The MML and MTA really didn’t say much that was different from the city council, as I noted above. They did add some extra statutory interpretation in their crusade to insult the Justices as much as possible about the Justices’ ability to do their jobs, but I think my attorney did an excellent job refuting their points.
Our August 31st motion asking the Court for permission to respond to the MML and MTA was granted today (September 9th).
20200909 – Order granting appellant’s motion to answer amicus brief on rehearing
Had the insurance attorney (or the MML and MTA) filed a motion asking to respond to the media amicus between January 31st (when the media amicus was filed) and July 24th (when the case was decided), then apparently the city council, MML, and MTA would have been limited to attacking the Justices and advising them that the city will be ignoring the decision – probably resulting in much shorter briefs.